The United Kingdom follows both common law and civil laws in applying its jurisdiction. The common law system is based on judicial precedent, where key decisions made by the courts are used as precedent in future cases. Common laws can also be created through the legislation process, where bills are brought into parliament and are assented into law after passing through various processes. The parliamentary sovereignty allows legislation on the common laws to be solely amended by the parliament in the United Kingdom.
Types of Legal Systems
There are three levels of legal jurisdictions, with each state having its legal system and distinctive origin. However, there exists an overlap in the three legal systems and jurisdictions in the United Kingdom and the other states. The United Kingdom has different legal systems since various political parties of independent countries created it. The Union Treaty came into effect in 1707 to reflect the union acts, which later created the United Kingdom and guaranteed both the countries’ legal systems to have separate laws from the initial charter. Therefore, each legal system has its jurisdiction in England, with each court established through jurisprudence. The jurisdiction kind that a country can use is provided in the United Kingdom’s private law.
Civil Law Legal System Vs. Common-Law Legal System
- There is little emphasis on precedent in the civil law system than in law codification since they rely on written statutes and other legal codes that are usually updated. These civil laws establish legal procedures, the punishment, and the types of cases brought before courts. However, the common law systems mostly emphasize judicial precedent, which can never be ratified.
- In a civil law system, judges can establish the case facts and apply the remedies found in the laws coded from the past judgments. Therefore, lawmakers and different legal experts have much more influence on civil law systems than individual judges. However, this case is different from common laws since they are set and passed by the parliament, and application is generally done in all government institutions.
- The common law system was developed alongside the equity courts, which formulate and devise remedies on legal matters depending on the fair and equal aspects of the law. These laws are therefore rigid and do not allow for changes over time. However, this case is not the same in civil laws since they regularly change, and application depends on the individual cases held at the courts.
- The common law depends on the judicial precedent, which works based on Stare Decisis principles. It has a certain set of rules that set the key courts and various juridical systems to handle the legal proceedings. However, this is not similar in the civil law courts, which do not depend on the precedents but rather on the current legal cases at the disposal of court judges.
Trial Procedure in the Common Law System
The United Kingdom trial procedure in the common law system ensures that the prosecution avails enough evidence beyond a reasonable doubt that the defendant is capable of having committed an offense. In addition, it is not the defendant’s duty to prove his/her innocence, but they are presumed to be innocent until proved guilty of an offense. The trial procedure in common law requires that there must be;
- Establishment of facts by the judges at courts; Here, the parties of the cases may, through consent by writhing, leave the decisions of fact to the court when the court attorney has signed it. The judge can also summon the cases or make a general ruling on any order as may be directed by the court.
- During a trial of causes of action, two or more judges may sit at the same time for a hearing; The common law system allows for any one of the judges at the superior courts through the request of the chief justice to try and establish the causes entered for trial in the lower courts when there is a precedential conflict of interest in a given matter.
- The judges or courts have the power to perform a direct arbitration before a case trial; The order directed by higher courts can be issued in writing to the lower court or to the judges upon application of another party to solve the matter in dispute through arbitration. Therefore, the judge could honor this by establishing a select committee to ensure that the independent arbitrator performs this process. In addition, the judge can arbitrate on behalf of the two parties and decide depending on the technicality of a case.
- In common law, special cases can be stated, and questions of facts tried by the courts; The common law system allows for the settlement of special cases that have appeared before a judge or at the court proceedings depending on the question of fact fit upon the judgment the jury. The special case becomes lawful when the judge or courts have directed these cases to be stated or issued a fair trial. A medicating group could act upon these cases, and the arbitration could be considered as final judgment.
- The common law also allows for direct arbitration by the judge during trial times when the facts issues have been left on his decisions; this component enables the judge to issue any facts and demand for the parties involved to appear before the court for hearing and judgment. Therefore, it is lawful when the parties in the case have appointed the judge pending a hearing, and there would be a consensus between the parties involved.
Judicial Precedent
The judicial precedent doctrine is based on stare decisis, which means that court judgment and decision would stand by the previous decisions. Therefore, this concept means that once a law has been decided in a particular case, it will always be applied in future cases that have the same facts as the current case. In addition, during the judgment delivery, the judge or the court is entitled to set out their specific reasons for reaching a given decision. The key reasons necessary for the court before determining their cases depend on the ratio decidendi of a given case underdetermination. Therefore, the ratio decidendi forms the legal aspect of binding the juridical precedent; hence, it must be followed in the cases related to the current case in future decisions.
Case Study
In the case of R Vs. Howe & Barrister (1987), the House of Lords held that the duress defense was not available in the murder case. This judgment was viewed as ratio decidendi of the case and applied in most murder cases. In addition, the House of Lords considered the availability of defense to those who have committed murder cases, and the jury outlined the obiter dicta that duress defense should not be available in cases involving attempted murder.
Advantages and Disadvantages of the Common Law Legal System
Advantages
- The common laws are specific since they expand and clarify the implementation of legislation. In addition, the key wordings from acts of parliament are broad enough to give general instruction on how cases should be handled in each situation.
- The common laws can also be applied to cases and unforeseen situations that lawmakers have anticipated. Therefore, common laws can examine and develop responsive measures to real-life problems.
- The doctrines in common law systems are effective and provide consistency in applying legislation in the legal systems of the United Kingdom. In addition, the parties involved in cases can understand the jury’s decision based on the precedent and not the personal biasness and view.
- The common law systems are flexible and speedy since they provide applicability, consistency, and flexibility during law-making. These aspects enable the specific precedent to be changed and offer an opportunity for future reforms.
Disadvantages
- The common laws are reactive and not proactive since the parliament cannot change them based on their accord. These laws are outdated and may need reform, but until another crime is committed when similar precedent would be set for future rulings.
- The creation of legislation depends wholly on the courts, while common law formation does not necessarily depend on the courts. Hence, the courts solely use the administration of justice as a secondary option for justice.
- Lawmakers can only review these common laws through an act of parliament, which is undemocratic since a section of citizens are involved and engaged during the reforms on the precedents.
Reference List
Court Judgments (2022) Web.
Halsbury’s England Laws (2019): Cover statutory and common law, alphabetically arranged. Over 85 volumes (7th ed.) Web.
House of Lords Judgments (2021) Web.
Leading cases in English Law (2022) Web.
Ministry of Justice publications (2020) Web.
Office of Public Sector Information (2021) Web.
The Incorporated Council of Law Reporting for England and Wales (2019) Web.
The Supreme Court decided cases (2021) Web.
The UK Statute Law Database. Web.